Pay or Else go to Prison
A remnant of a bygone era. The risk of incarceration on the failure to pay a debt only exists in a very narrow list of cases as preserved by the Debtors Act 1869. Non-payment of maintenance payments under a divorce settlement is one of the items on that list.
Given the draconian nature of incarceration for the pithy matter of money and debt, it tends to be exceptionally used. It often only raises its powerful head when other forms of enforcement have proved unsuccessful or inappropriate.
Where the debtor under a maintenance order is not paying and is self-employed, an attachment of earnings is not possible. Further, the nature of the needs of the creditor (typically, a mother with children) and the ineffectiveness of a charging order to crystallise into regular cash means judgment summons come to the fore: if a judgment summons petition is successful, the debtor will usually be told to pay or else go to prison by way of a suspended committal order (rarely, is (s)he sent to the dudgeons at the first opportunity).
Given the rule-ridden human rights infected minefield that judgment summons have become and the general exceptional recourse that it has proven to be, this text is motivated by the desire to bring together the principal procedural and substantive rules in one place, at least, as a convenient navigating tool.
The rules and regulations
The rules are to be found in:
- Part 33, Family Procedure Rules 2010;
- County Court Rules 28;
- Practice Direction on Committal Hearings; and
- Human Rights Law (especially if you are defending).
The reason for this area being rule heavy and judges often intervening on their own volition against petitions is because civil judges do not like sending anyone to prison unlike their criminal counterparts. If you have tripped up on a relatively minor rule, do not expect any argument of no prejudice to save you.
Article to be released in parts. Below is simply an indication of areas to explore.
Preparing the Petition
Criminal Standard of Proof
Proving wilful failure/neglect
Provide no evidence.
Starting Point: Clean Sheet
A good time to re-negotiate.
Note for Barristers
Civil barristers, exceptionally, have to wear their wig and gown. This is one of those occasions. It is warranted by the possibility of incarceration. Presumably, the same applies to solicitor advocates.
If any readers have questions on this article, they will be happily received @ firstname.lastname@example.org.
Taj Uddin, MA Oxon
Barrister, Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)
 Debtors Act 1869, s.4
 Ibid, s.5, a non-payment of a debt or instalment under a court order
 Practice Direction Committal Hearings, clearly relief from formality errors is clearly theoretically possible.
 If anybody knows where this rule is set down, please contact me @ email@example.com